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01-04-05 Item 5To: Honorable Mayor, Vice Mayor and City Commission From: Maria V. Davis City Manager RESOLUTION: Date: January 4, 2005 Subject: Agenda Item # g Comm. Mtg. 01/04/05 Authorization to enter into an agreement with the SAO for municipal ordinance violations A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO PROSECUTION OF MUNICIPAL VIOLATIONS; APPROVING THE ENTRY INTO AN AGREEMENT BETWEEN THE STATE OF FLORIDA, OFFICE OF THE STATE ATTORNEY FOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA AND THE CITY; AUTHORIZING THE REIMBURSEMENT OF THE STATE FOR THE COST OF STATE ATTORNEY'S PROSECUTION OF CERTAIN CRIMINAL VIOLATIONS OF THE CITY'S CODE; PROVIDING FOR AN EFFECTIVE DATE. BACKGROUND AND ANALYSIS: A recent amendment to Florida law requires that an agreement be in place between the State Attorney's office (S.A.O.) and a municipality wherein the municipality agrees to reimburse the S.A.O. for the prosecution of local ordinance violations that are not accompanied by a state charge. After January 1, 2005, the S.A.O. will not prosecute such cases without the agreement, which calls for reimbursement at a rate of $50.00 per hour. It is estimated that one hour will cover the prosecution of one to three cases. Although arrests for such local ordinance violations which do not have a corresponding or ancillary state statute only amount to a few per year, there must be a mechanism in place to prosecute the cases. The proposed Resolution authorizes the City to enter into the agreement. Since this agreement would expire and is renewable on September 30, 2005, the adequacy will be reviewed over the next nine months to determine whether it is acceptable to renew. Upon approval, the Police Department will be promulgating a policy to ensure that applicable cases are kept to a minimum. RECOMMENDATION: We recommend your approval RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO PROSECUTION OF MUNICIPAL VIOLATIONS; APPROVING THE ENTRY INTO AN AGREEMENT BETWEEN THE STATE OF FLORIDA, OFFICE OF THE STATE ATTORNEY FOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA AND THE CITY; AUTHORIZING THE REIMBURSEMENT OF THE STATE FOR THE COST OF STATE ATTORNEY'S PROSECUTION OF CERTAIN CRIMINAL VIOLATIONS OF THE CITY'S CODE; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, in order to maintain and improve the health, safety and welfare of this community, it is necessary to adequately enforce and prosecute violations of the city's municipal code; and, WHEREAS, section 27.02, Florida Statutes, authorizes the State Attorney to prosecute municipal ordinance violations punishable by incarceration if ancillary to state prosecution or, if not ancillary to state prosecution, when the State Attorney contracts with the City for reimbursement; and, WHEREAS, last year, the Florida Legislature implemented an amendment to Article V of the State Constitution, under chapter 2004 -265, Laws of Florida, which prohibits the state from prosecuting violations of municipal ordinances unless that prosecution is ancillary to state prosecution or the state attorney has contracted with the municipality for reimbursement for services; and, WHEREAS, pursuant to this change in Florida law, the City seeks to enter into an agreement with the State Attorney for the prosecution of violations of municipal ordinances; and, WHEREAS, the attached Agreement is legally sufficient in form and content. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, THAT; Section 1. The City Manager is authorized to execute and to deliver to the State Attorney the attached Agreement between the City and the State of Florida, Office of State Attorney for the Eleventh Judicial Circuit of Florida, which agreement is to reimburse the state for the costs of state attorney prosecution of certain criminal violations of the city's municipal code. Section 2. This resolution shall take effect immediately upon approval. PASSED and ADOPTED this day of January, 2005. ATTEST: APPROVED: CITY CLERK MAYOR COMMISSION VOTE: READ AND APPROVED AS TO FORM: Mayor Russell: Vice Mayor Palmer: Commissioner Wiscombe: Commissioner Birts- Cooper: CITY ATTORNEY Commissioner Sherar: Section 4. ,Section 27.01, Florida Statutes, as amended by Chapter 2003 -402, Laws of Florida, is amended to read: 27.02 Duties before court. - -(I) The state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as provided in chapters 39, 984, and 985. The intake procedures of chapters 39; 984, and 985 shall apply as provided; therein. The state attorney shall not appear in the circuit and county courts within his or her judicial circuit for the purpose of prosecuting violations of special laws and,, Fcounty or municipal ordinances punishable by incarceration if the prosecution is ancillary to a state prosecution or if the state attorney has contracted with the county or municipality for reimbursement for services rendered in accordance with s 27 34(1), unless ancillary to a state preseoution and authorized by the prosecuting a#eFney of the eount�,. (2) The state attorney, when complying with the discovery obligation. hall provide to th a li elan l di i, materials equiFed pursuant to the applicable rule of procedure, and may charge the defendant fees as provided for in s. l 19.07(l)(a), not to exceed 15 cents per page for a copy of a noncertified copy of a public record. However, these fees may be deferred if the defendant has been determined to be indigent as provided in s.,27.52. Section 5. Section 27.34, Florida Statutes, as amended by Chapter 2003-402, Laws of Florida, is amended to read: 27.34 Limitations on payment of salaries and other related costs of state attorneys' offices other than by the state.- - (1) A county or municipality may net contract with, or appropriate or contribute funds to the operation of, the various state attorneys as provided in this subsection prosecution violations +ez s rl , a wr -, inicipali�Y, unless aneillaj3, to a state Frasextien. A state attorney prosecuting violations of special laws or county or municipal ordinances punishable by incarceration and not ancillary to a state charge shall contract with counties and mumcipahties to recover the full cost of services rendered on an hourly basis or reimburse the state for the full cost of assigning one or more full -time equivalent attorney Positions to work on behalf of the county or municipality. Notwithstanding any other provision of law, in the case of a county with a population of less than 75,000, the state attorney shall contract for full reimbursement or for reimbursement as the parties otherwise agree. - (a) A contract for reimbursement on an hourly basis shall require counties and municipalities to reimburse the state attorney for services rendered at a rate of $50 per hour. If an hourly rate is specified in the General Appropriations Act; that rate shall control MIA contract for assigning one or more full -time equivalent attorney positions to perform work on behalf of a county or municipality shall assign one or more full -time equivalent positions based on estimates b� the state_ attorney of the number of hours required to handle the projected workload The full cost of each full -time equivalent attorney position on an annual basis shall be $50 or the amount specified in the General Appropriations Act multiplied by the legislative budget request standard for availabie work hours for one full -time equivalent attorney position or, in the absence of that standard 1,854 hours The contract may provide for funding full -time equivalent positions in one quarter increments Lc) Persons employed by the county or municipality may be provided to the state attorney to serve as special investigators pursuant to the provisions of s. 27.251. Any payments received pursuant to this subsection shall be deposited into the Grants and Donations Trust Fund within the Justice Administrative Commission for appropriation by the Legislature (2) A it is b w H * a f Y y may not to receive from any r any attorne or assistant state attorney county or municipality any supplemental salary, except as provided in this section. (3) Notwithstanding s. 27.25, the Chief Financial Officer may contract with the state attorney of any judicial of the state for the prosecution of criminal violations of the Workers' Compensation Law and l related crimes if the Chief Financial Officer contributes funds for such purposes. Such contracts may provide for the training, salary, and expenses of one or more assistant state attorneys used in the prosecution of such crimes. If the Chief Financial Officer contributes funds to the state attorney to i prosecute these violations and the accused person is indigent and represented by the public defender, the Chief Financial Officer shall also contract with the public defender to provide representation to the person i accused of these crimes. The contract mgy provide for the training, salary, and expenses of one or more assistant public defenders used in the defense of these crimes (4) Unless expressly authorized by law or in the General Appropriations Act state attorneys are prohibited from spending state - appropriated funds on county funding obligations under s 14 Art V of the State Constitution beginning January 1 2005 This includes expenditures on communications services and facilities as defined in s. 29.008. This does not prohibit a state attorney from spending funds for these purposes in exceptional circumstances when necessary to maintain operational continuity in the form of a short-term advance pending reimbursement by the county. If a state attorney provides short-term advance funding for a county responsibility as authorized by this subsection the state attorney shall request full reimbursement from the board of county commissioners prior to making the expenditure or at the next meeting of the board of county commissioners after the expenditure is made The total of all short-term advances authorized by this subsection shall not exceed 2 percent of state attorney's approved o grating budget to any given year. No short-term advances authorized by this subsection shall be permitted until all reimbursements arising from advance funding in the prior state fiscal year have been received by the state attorney. All reimbursement payments received by the state attorney pursuant to this subsection shall be deposited into the General Revenue Fund Notwithstanding the provisions of this subsection the state attorney may expend funds for the purchase of computer systems including associated hardware and software, and for personnel' related to this function i i #WW; ail AGREEMENT BETWEEN AND THE STATE OF FLORIDA, OFFICE OF THE STATE ATTORNEY FOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA TO REIMBURSE THE STATE FOR ; THE COST OF STATE ATTORNEY PROSECUTION OF CERTAIN CRIMINAL VIOLATIONS OF THE CODE This agreement is entered into this day of 2004, by and between a political subdivision of the State of Florida (hereinafter referred to as the "City ") and the Office of the State Attorney for the Eleventh Judicial Circuit of Florida (hereinafter referred to as "State Attorney"). WHEREAS, the City finds that in order to maintain and improve the health, y, y, ' necessary to adequately enforce and prosecute safety, welfare of this community, is necess violations of the City's Municipal Code; and WHEREAS, Section 27.02, Florida Statutes, authorizes the State Attorney to prosecute municipal ordinance violations punishable by incarceration if ancillary to state prosecution or, if not ancillary to state prosecution, when the State Attorney contracts with the City for reimbursement. NOW, THEREFORE, the parties hereto agree as follows: E 1 C ARTICLE I Services The State Attorney agrees to prosecute municipal ordinance violations as authorized in Sections 27.02, and 27.34, Florida Statutes. The City agrees to remit, subject to the terms outlined in Article III of this agreement, to the State Attorney the required funds to reimburse for costs associated with the prosecution of violations of the Municipal Code for the period of July 1, 2004, through September 30, 2005. The State Attorney shall provide such clerical and professional personnel as may be required for the performance of any of the functions of the State Attorney as set forth in this agreement. This agreement does not commit the City to pay for the prosecution of Municipal Code violations ancillary to state prosecution or for the prosecution of municipal ordinance violations not punishable by incarceration. ARTICLE II Terms This agreement shall expire on September 30, 2005, unless terminated earlier pursuant to Article VII of this agreement. Under no circumstances shall the City be liable to continue or extend this agreement beyond this date. This agreement may only be amended in writing, through a document executed by duly authorized representatives of the signatories to this agreement. ARTICLE III Payment Schedule 4 F u 2 t, The City agrees to reimburse the State Attorney on an hourly basis for services rendered at a rate of Fifty dollars ($50) per hour. On a quarterly basis, the State Attorney shall provide the City with an invoice including, but not limited to, the hours of services rendered, number of cases prosecuted as set forth in this agreement, and the total amount due for payment for the previous month. _ The City shall remit each payment within ten (10) days after receiving said invoice from the State Attorney. ARTICLE IV Responsibilities The City does not delegate any of its responsibilities or powers to the State Attorney other than those enumerated in this agreement. The State Attorney does not delegate any of its responsibilities or powers to the City other than those enumerated in this agreement. ARTICLE 'V Reporting All required reports shall be submitted to the f ,4 3 } ARTICLE VI Indemnification It is expressly understood and intended that the State Attorney is only a recipient of the reimbursements paid by the City and is not an agent of the City. The respective parties agree, subject to the provisions of Chapter 768.28 (17), Florida Statutes, that they will hold each other harmless from any claims arising from this agreement. ARTICLE VII Termination Either party may terminate this agreement at any time with or without cause by furnishing written notice to the other party with no less than ninety (90) days notice. ARTICLE VIII Service Charges This agreement is contingent upon all City funding provided, and any interest earned thereon, not being subject to any State service charges or administrative assessments. ARTICLE IX Non- Discrimination The State Attorney agrees to abide and be governed by Title II of the Americans with Disabilities Act of 1990, Title VI and VII, Civil Rights Act of 1964 (42 USC 200d, e) and Title Viii of the Civil Rights Act of 1968, as amended, which provides in part that there will not be discrimination of race, color, sex, religious background, ancestry, or r national origin in performance of this contract, in regard to persons served, or in regard to +; ,r 4 l;